Filed: Jul. 29, 2010
Latest Update: Feb. 21, 2020
Summary: 08-5168-ag Chen v. Holder BIA Opaciuch, IJ A097 478 705 A097 478 706 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATAB
Summary: 08-5168-ag Chen v. Holder BIA Opaciuch, IJ A097 478 705 A097 478 706 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABA..
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08-5168-ag
Chen v. Holder
BIA
Opaciuch, IJ
A097 478 705
A097 478 706
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 29 th day of July, two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
XIU MEI CHEN, JI YAN XIAO,
Petitioners,
v. 08-5168-ag
NAC
ERIC H. HOLDER, JR., 1 U.S. ATTORNEY
GENERAL,
Respondent.
_____________________________________
1
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr., is
automatically substituted for former Attorney General
Michael B. Mukasey as the respondent in this case.
FOR PETITIONERS: Xiu Mei Chen, pro se, New York, New
York.
FOR RESPONDENT: Tony West, Assistant Attorney
General, Richard M. Evans, Assistant
Director, Kevin J. Conway, Attorney,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners, Xiu Mei Chen and Ji Yan Xiao, 2 both
natives and citizens of China, seek review of the September
30, 2008 order of the BIA, affirming the January 21, 2005
decision of Immigration Judge (“IJ”) Adam Opaciuch, denying
their application for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”). In re
Xiu Mei Chen and Ji Yan Xiao, Nos. A097 478 705/706 (BIA
Sept. 30, 2008), aff’g Nos. A097 478 705/706 (Immig. Ct.
N.Y. City Jan. 21, 2005). We assume the parties’
familiarity with the underlying facts and procedural history
2
Xiu Mei Chen’s asylum application included her
husband, Ji Yan Xiao, as a derivative applicant. The
BIA’s decision primarily discussed Chen’s eligibility for
asylum and related relief. Therefore, for the sake of
clarity, this order refers only to Chen throughout.
2
in this case.
Under the circumstances of this case, we review the
decision of the IJ as supplemented by the BIA. See Yan Chen
v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
applicable standards of review are well-established. See
8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey,
529 F.3d
99, 110 (2d Cir. 2008); Corovic v. Mukasey,
519 F.3d 90, 95
(2d Cir. 2008).
A. Past Persecution
Chen does not contend, nor could she, that mandatory
use of an intrauterine device (“IUD”), by itself,
constituted past persecution. See Xia Fan Huang v. Holder,
591 F.3d 124, 129-30 (2d Cir. 2010). Rather, Chen submits
that the agency erred in failing to address her claim that
her removal of her IUD and failure to attend mandatory
gynecological examinations constituted resistance to China’s
coercive population control policy. In Matter of M-F-W- &
L-G-, 24 I. & N. Dec. 633, 638 (BIA 2008), decided after
Chen’s administrative appeal was dismissed, the BIA
clarified that “other resistance to a coercive population
control program,” 8 U.S.C. § 1101(a)(42), includes such
conduct. Remand is not warranted here, however, because the
3
agency correctly determined that Chen failed to demonstrate
that she suffered any punishment for such resistance, much
less punishment both rising to the level of persecution and
on account of her resistance. See Matter of M-F-W- & L-G-,
24 I. & N. Dec. at 639-43; see generally Xiao Ji Chen v.
U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir. 2006)
(declining to remand when “we can state with confidence that
the same decision would be made if we were to remand”). Nor
does the record compel the conclusion that the insertion of
Chen’s IUD was accompanied by “aggravating circumstances”
rising to the level of persecution. Matter of M-F-W- &
L-G-, 24 I. & N. Dec. at 642. Accordingly, substantial
evidence supports the agency’s determination that Chen
failed to demonstrate that she suffered past persecution and
was, therefore, not entitled to the presumption of a well-
founded fear of future persecution. See 8 C.F.R.
§ 1208.13(b)(1).
B. Well-Founded Fear of Future Persecution
Chen argues that the agency erred in concluding that
she failed to establish a well-founded fear of future
persecution based on the birth of her two children -- the
first in China and the second in the United States -- in
4
violation of China’s population control policy. Contrary to
Chen’s argument, the record does not suggest that the agency
ignored any material evidence that she submitted in support
of her application for relief. See Jian Hui Shao v.
Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (“[W]e do not
demand that the BIA expressly parse or refute on the record
each individual argument or piece of evidence offered by the
petitioner.” (internal quotation marks omitted)); Xiao Ji
Chen, 471 F.3d at 336-37 n.17 (presuming that agency
considered all evidence before it).
Nor are we persuaded by Chen’s argument that the agency
placed “excessive reliance” on the U.S. Department of
State’s 2007 Country Conditions Profile. Pet’r’s Br. at 13
(internal quotation marks omitted). We generally defer to
the agency’s evaluation of documentary evidence, see Xiao Ji
Chen, 471 F.3d at 341-42, and we have observed that U.S.
State Department reports are ordinarily probative, see Tu
Lin v. Gonzales,
446 F.3d 395, 400 (2d Cir. 2006); see also
Matter of H-L-H- & Z-Y-Z-, 25 I. & N. Dec. 209, 213 (BIA
2010) (“State Department reports ... are highly probative
evidence and are usually the best source of information on
conditions in foreign nations.”).
5
Accordingly, the agency properly denied Chen’s
application for asylum. Because Chen was unable to
establish the requisite well-founded fear for asylum, she
necessarily failed to meet the higher standard required for
withholding of removal and CAT relief. See Kyaw Zwar Tun v.
INS, 445 F.3d 554, 567 (2d Cir. 2006); Paul v. Gonzales,
444
F.3d 148, 156 (2d Cir. 2006).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34.1(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
6
